Even During a Pandemic, the Needs of the Many Do Not Outweigh the Rights of the Few

May 2nd, 2020

BRUCE PARDY – The Epoch Times

On June 30, 1979, Georgette Malette was seriously injured in a traffic accident near Kirkland Lake, Ontario. At the hospital, the attending physician concluded that she needed a blood transfusion to survive. However, Malette was a Jehovah’s Witness. She was unconscious but carried a card which specified that she was not to receive blood transfusions under any circumstances. The doctor proceeded anyway, believing it to be his professional responsibility to administer the transfusions to save her life.

Malette eventually made a full recovery and sued the doctor for battery for administering transfusions without her consent. The Ontario Court of Appeal concluded that the doctor was liable even though his medical diagnosis was correct. Everyone has the freedom to make their own choices concerning their medical care, the Court said, “regardless of how unwise or foolish those choices may appear to others.” The doctor’s expertise was irrelevant because the question was not a medical one. No one may overrule your wishes even if they lead to your demise. In the common law, autonomy over your own body trumps survival.

Work on a COVID-19 vaccine is underway, although some medical professionals are doubtful whether one will be developed soon or even at all. However, if one does emerge, the most pressing question will be whether vaccination should be mandatory. At a press conference on April 28, Prime Minister Trudeau refused to rule it out.

Public health officials could well be in favour. Vaccines protect us all, they will say. We must achieve herd immunity to insulate vulnerable people with compromised immune systems who are not able to tolerate vaccination themselves. The greater good, they will say, demands that healthy people submit.

Unfortunately, these experts and the “obey-the-science” crowd are making the same mistake as Malette’s doctor: they believe that science holds the answer. In fact, the question is not medical but legal and philosophical. Whether legislation that makes vaccination mandatory would be constitutional under the Charter of Rights and Freedoms is an open question, but it would undoubtedly conflict with the common law principle that you have autonomy over your own body, even where life hangs in the balance. That principle does not change depending on whose life it is. The needs of the many do not outweigh the rights of the few, or the one.

On April 28, the Canadian Press reported a Leger online poll in which 60 percent of respondents supported mandatory coronavirus vaccination, while 40 percent opposed it. The internet survey was not random so did not purport to accurately represent the views of the Canadian population. However, a majority might well support mandatory vaccination. If so, they should be ignored. Rights protect individuals from the whims of public opinion. Other people are free to inform, cajole, and persuade you, but sovereignty over your own body means that only you decide.

To be sure, rights are not absolute but limited by the rights of others. The ability to swing your fist ends where it hits someone in the face. Freedom of expression protects unpopular views but not speech that defames. But to say that rights are limited by the rights of others is quite a different thing from saying that they are subject to the greater good. Imagine, for example, that five of your neighbours need organ transplants to survive. They tap you as the donor: liver, lungs, heart, and two kidneys. Fortunately, no official has the authority to take your life even if it will save five others. You have a right not to be touched without consent regardless of social costs and benefits. Your life and your body are yours. The rights of the one outweigh the needs of the many.

Vaccination is different, the experts will insist. We are not taking your life or causing you harm but protecting you and others. Vaccines are effective and the risk of side-effects is small. We should not give credence to the ignorant who believe that the dangers of vaccines outweigh their benefits. You sacrifice nothing for the greater good and yet the greater good will be served nonetheless. In our judgment, they will proclaim, the social benefits far outweigh the risks in any individual case.

That is not their judgment to make. The principle of self-determination has nothing to do with the efficacy of vaccines, just as it has nothing to do with the effectiveness of blood transfusions. Georgette Malette had the right to refuse transfusions because she didn’t want them, not because they wouldn’t work. Malette’s doctor was correct that she needed transfusions to survive, but weighing that benefit against the violation of her beliefs was a calculation only Malette was entitled to make. So too with the rest of us.

The real question is, who has charge of your body? Even during a pandemic, the answer should be you.
Bruce Pardy is Professor of Law at Queen’s University and a member of the Justice Centre Board of Directors.